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CHEQUE BOUNS CASE

Even in cheque bounce cases , the private employee can be suspended from his service.The Rule 13(1) empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges where such suspension is necessary in the public interest. When the first information report is issued, the investigation commences and indeed it has commenced when the respondent was kept under suspension. The order of suspension cannot, therefore, be said to be beyond the scope of Rule 13(1) merely because it has used the word ‘prosecution’ instead of investigation into the charges against the respondent. A wrong wording in the order does not take away the power if it is otherwise available. The Tribunal seems to have ignored this well accepted principle.” (Emphasis added)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 17/08/2011

CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR

W.P.(MD) No.9231 of 2011
and
M.P.(MD).No.1 of 2011

P.Chidambaram … Petitioner

Vs.

Secretary,
Arignar Anna College,
Aralvoymoli – 629 301,
Kanyakumari District. … Respondent

Petitions filed under Article 226 of the Constitution of India praying for
a Writ of Certiorarified Mandamus, to call for the records relating to the
impugned order bearing No.1457/A/2011, dated 19.07.2011 issued by the respondent
and quash the same and consequently, direct the respondent to reinstate the
petitioner in service with continuity of service and with all consequential
benefits.

!For petitioner .. Mr.G.R.Swaminathan
^

:ORDER

Challenge in this writ petition is to an order, dated 19.07.2011, of the
Secretary, Arignar Anna College, Kanyakumari District, suspending the petitioner
from service, with effect from 14.07.2011, the date on which, he was arrested
and detained in judicial custody.
2.Assailing the correctness of the order, learned counsel for the
petitioner submitted that though criminal cases, registered under Section 138 of
the Negotiable Instruments Act, 1881, in C.C.Nos. 292, 290, 279, 278, 287, 291,
280, 293, 288, 282, 289, 281, 362, 361, 387, 364, 363 & 355 of 2002 and S.T.C.
No.1311 of 2003, on the file of the Judicial Magistrate No.II, Nagercoil, ended
in conviction and confirmed in Criminal Appeal Nos.47, 45, 38, 37, 42, 46, 39,
48, 43, 41, 44, 40, 56, 55, 59, 58, 57 & 49 of 2005 and 199 of 2005, on the file
of the learned Sessions Judge, Nagercoil, the petitioner has been enlarged on
bail, pursuant to suspension of sentence granted by this Court on 29.07.2011,
in M.P.Nos.2 of 2011 in Crl.R.C.(MD).Nos.607 to 624 of 2011 & 637 of 2011. As
the petitioner was confined in judicial custody, he could not inform the
College Committee about the same. Learned counsel for the petitioner further
submitted that involvement of the petitioner in the above said criminal cases
filed under the provisions of the Negotiable Instruments Act, 1881, have
nothing to do with the discharge of duties and responsibilities, attached to the
post of lecturer in the college. Inviting the attention of this Court to
Section 19 of the Tamil Nadu Private Colleges (Regulations) Act, 1976 and the
Code of Conduct prescribed, as per Sub-Section 1 of Section 18 of the Act, he
submitted that the respondent ought to have considered the nature of the
allegations levelled against the petitioner and merely because the petitioner
was involved in criminal cases, suspension ought not to have been invoked.
3.Heard the learned counsel for the petitioner and perused the materials
available on record.

4.Before adverting to the facts of case, this Court deems it fit to
extract Sections 18 and 19 of the Tamil Nadu Private Colleges (Regulation) Act,
1976;
“18.Teachers and other persons employed in Private Colleges to be governed
by Code of Conduct.- (1) Every teacher and every other person employed in any
private college shall be governed by such Code of Conduct as may be prescribed
and if any teacher or other person so employed violates any provision of such
Code of Conduct, he shall be liable to such disciplinary action as may be
prescribed.
(2) The College committee may define the standards of conduct to be
observed by teachers and other persons employed in the private college, such
standards not being inconsistent with the provisions of this Act and the rules
made thereunder.

19.Dismissal, removal or reduction in rank or suspension of teachers or
other persons employed in private colleges.- (1) Subject to any rule that may
be made in this behalf no teacher or other person employed in any private
college shall be dismissed, removed or reduced in rank nor shall his appointment
be otherwise terminated except with the prior approval of the competent
authority.
(2) Where the proposal to dismiss, remove or reduce in rank of otherwise
terminate the appointment of any teacher or other person employed in any private
college is communicated to the competent authority, that authority shall, if it
is satisfied that there are adequate and reasonable grounds for such proposal,
approve such dismissal, removal, reduction in rank or termination of
appointment.
(3)(a) No teacher or other person employed in any private college shall be
placed under suspension, except when an inquiry into the gross misconduct,
within the meaning of the Code of Conduct prescribed under sub Section(1) of
Section 18 of such teacher or other person is contemplated.
(b) No such suspension shall remain in force for more than a period of two
months from the date of suspension and if such inquiry is not contemplated
within that period, such teacher or other person shall, without prejudice to the
inquiry, be deemed to have been restored as teacher or other employee.
Provided that the competent authority may, for reasons to be recorded in
writing extend the said period of two months, for a further period not exceeding
two months, if, in the opinion such competent authority the enquiry could not be
completed within the said period of two months for the reasons directly
attributable to such teacher or other person.”

5.Rule 12 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976
states that (1) every teacher and other person employed in a college shall be
governed by the code of conduct as set out in Annexure I; (2) every teacher or
other person employed in a college shall, for violation of any of the provisions
of the code of conduct, be liable disciplinary action and punishment which may
include dismissal, removal, termination of service or reduction in rank; (3)
every committee shall send to the Director a copy of the standards of conduct
referred to in sub-section (2) of Section 18; and (4) Violation of any of the
standards of conduct defined by the committee shall render the teacher or other
person employed in a college liable to disciplinary action and punishment which
shall not, however, include dismissal, removal, termination of service or
reduction in rank.

6.Rule 13 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976
reads as follows;
Suspension of teachers or other persons employed in colleges:-
(1) Whenever a teacher or other person employed in a college is kept under
suspension for gross misconduct, the educational agency shall pay him the
subsistence allowance every month at half the rate of pay which he was drawing
at the time of suspension and in addition to the dearness allowance and other
allowances, admissible on the basis of such pay.
(2)Whenever a teacher or other person employed in a college is kept under
suspension, the grant payable to the college shall be governed by the following
provisions, namely:-
(a)Where, after due enquiry, including the appeal, the suspension is found
justified, the committee will be entitled to the grant towards the expenditure
of subsistence allowances actually paid to the teacher or other person employed
in the college and such expenditure shall be taken into account as admissible
item for purposes of assessment of grant. Substitutes, if any appointed, may be
taken into consideration for assessment of grant if such substitute is a
qualified person and is within the sanctioned strength of teaching staff as
approved by the Director;
(b) Where, after due enquiry, including the appeal, suspension is found
not justified, the committee shall not be entitled to any grant in respect of
the expenditure on the subsistence allowance paid to the teacher or other person
employed in the college. The educational agency shall, however, pay such
teacher or other person the full pay and allowances he would have drawn but for
his suspension. Any substitute, appointed in the place of the said teacher or
other person shall not be taken into consideration for assessment of grant.”

7. No doubt, Code of conduct prescribed in Annexure II to Tamil Nadu
Private Colleges (Regulation), Rules, 1976 read with Sub Section 1 of Section 18
of the Tamil Nadu Private Colleges (Regulation) Act, 1976, enumerates certain
acts of misconduct. But it cannot be contended that only for the enumerated acts
mentioned in Annexure I, disciplinary action can be taken against a teacher or
other person employed in a college. Instances mentioned in the Code of Conduct
are only illustrative in nature and that would not preclude the College
Committee from suspending a teacher or non teaching staff or taking disciplinary
action, when he is involved in a crime. Offence means public wrong including
crime or indictable offence, a comprehensive term to cover anything for which a
Court can impose punishment. When a person is involved in a crime, punishable
under law, it cannot be contended that the College Committee which enjoins a
duty to maintain discipline not only among the students, but also among teaching
and non teaching committee, should remain as a mute spectator, even if the
teaching or non teaching staff is involved in a crime. It is to be noted that in
the case on hand, the petitioner has been convicted by the Court. The appeals
have been dismissed and that the petitioner is only on bail, on account of
suspension of sentence. Clause 6 of the Code of conduct for teacher and other
persons employed in a college states that when a teacher or other person
employed in a college is involved in criminal proceedings, he shall inform the
committee about such proceedings. Thus, it could be seen that the College
Committee, the disciplinary authority, has every right to know whether the
teacher or other person is involved in a criminal proceedings and he should
inform the committee. In the case on hand, as per the averments made in the
supporting affidavit, the petitioner, who was in confinement from 14.07.2011,
had not even reported the said fact to the College Committee.

8.Perusal of the supporting affidavit shows that the petitioner was
prosecuted under Section 138 of the Negotiable Instruments Act, 1881, in
C.C.Nos. 292, 290, 279, 278, 287, 291, 280, 293, 288, 282, 289, 281, 362, 361,
387, 364, 363 & 355 of 2002 and S.T.C. No.1311 of 2003, on the file of the
Judicial Magistrate No.II, Nagercoil, Kanyakumari District. He was convicted in
all the cases and that the appeals made in Criminal Appeal Nos.47, 45, 38, 37,
42, 46, 39, 48, 43, 41, 44, 40, 56, 55, 59, 58, 57 & 49 of 2005 and 199 of 2005,
on the file of the learned Sessions Judge, Nagercoil, Kanyakumari District, were
also dismissed. However, by an order dated 29.07.2011, in M.P.(MD).Nos.2 of
2011 in Crl.R.C.(MD).Nos.607 to 624 of 2011 & 637 of 2011, this Court has
granted only suspension of sentence. It is well known that suspension of
sentence does not wipe out conviction. As the petitioner has been convicted by
a Court of competent jurisdiction for offences under the provision of the
Negotiable Instruments Act, 1881, there is no manifest illegality in suspending
the petitioner from service from the date of his confinement.

9.The contention that the convictions of the petitioner in the above said
criminal cases have no relevance to the discharge of his function as lecturer,
is rejected for the reasons that as a teacher in a college, he has to discharge
his duties efficiently, diligently and that should be a role model to the
students. Though Courts have consistently held that protection under Article
311 of the Constitution of India, can be extended to a teacher or other persons
employed in a college, in the case on hand, when there is conviction, the
College Committee is empowered to suspend or even impose a major penalty of
dismissal or removal from service. The code of conduct deals only with certain
illustrative cases and the arguments of the petitioner that the College
Committee has no power or authority to place a teacher or any other person
working in the college under suspension, even if there is involvement of such
person in a crime or during trial or after conviction, does not merit any
consideration.

10.In Manager, Nirmala Senior Secondary School, Port Blair, Vs. N.I.Khan
and others, reported in AIR 2004 SC 249, speaking of the importance of a teacher
and the sanctity of an educational institution, the Hon’ble Mr.Justice ARIJIT
PASAYAT, (as he then was), observed as follows;
“A teacher affects eternity. He can never tell where his influence stops;
said Henry Adam. Any educational institution for its growth and acceptability to
a large measure depends upon the quality of teachers.

2. Educational institutions are temples of learning. The virtues of human
intelligence are mastered and harmonised by education. Where there is complete
harmony between the teacher and the taught, where the teacher imparts and the
student receives, where there is complete dedication of the teacher and the
taught in learning, where there is discipline between the teacher and the
taught, where both are worshippers of learning, no discord or challenge will
arise. An educational institution runs smoothly when the teacher and the taught
are engaged in the common ideal of pursuit of knowledge. It is, therefore,
manifest that the appointment of teachers is an important part in educational
institutions. The qualifications and the character of the teachers are really
important.”

11.In the above said case, a teacher allegedly abused and attempted to
assault a lady principal of the educational institution in front of the school,
which led to the lodging of a First Information Report, following which, the
teacher was suspended. A few days later, the said teacher picked up quarrel
again and threatened to burn the school down. Again a complaint was lodged with
the Police. The Director of Education revoked the order of suspension and
indicated that a separate enquiry would be conducted by the Directorate. The
school, which was a minority institution opposed the action of the Directorate,
contending that it was an interference with their right guaranteed under Article
30(1) of the Constitution of India. On the one side, the school contended that
the governmental authorities were trying to scuttle its efforts to enforce
discipline and the management was prevented to keep an undisciplined teacher out
of the institution to maintain purity in education and serene atmosphere of the
institution. On the other hand, the educational authorities insisted on a
different procedure. On the aspect of retaining a teacher against whom serious
imputation were made in the midst of children, the Supreme Court at para No.10
observed as follows;

“10….. The clay-like minds of young children are shaped into beautiful
moulds by teachers. They shape the future course of the students. To a great
measure their behaviour, character, reputation leave imprints in the minds of
the young children. If their conduct, behaviour and reputation is full of
blemish that would not be for the interest and in the welfare of the students.
Respondent Khan has denied the allegations and has alleged bias. But we do not
think it necessary to opine one way or the other. Whatever be the truth, the
undisputed fact is that the litigation has continued unabated for long years. It
would neither be in the interest of respondent Khan nor the institution if
respondent Khan is continued in the institution. By making this observation, it
is not to be construed as if we have found the allegations to be true. On the
contrary, the welfare of the institution, the reputation of respondent Khan has
been considered by us in the proper perspective. If an act or omission of an
employee reflects upon his character, reputation, integrity or devotion to duty
or is an unbecoming act, certainly the employer can take action against him. In
this context, reference may be made to the following observations of Lopes, C.J.
in Pearce v. Foster4 (QBD at p. 542):
“If a servant conducts himself in a way inconsistent with the faithful discharge
of his duty in the service, it is misconduct which justifies immediate
dismissal. That misconduct, according to my view, need not be misconduct in the
carrying on of the service of the business. It is sufficient if it is conduct
which is prejudicial or is likely to be prejudicial to the interests or to the
reputation of the master, and the master will be justified, not only if he
discovers it at the time, but also if he discovers it afterwards, in dismissing
that servant.”

12.In P.A.Inamdar and others Vs. State of Maharashtra and others, reported
in (2005) 6 SCC 537, where the Supreme Court, while considering the value and
role of education in nation building at paragraphs Nos.81 to 85 and 87 to 90,
has considered the importance of education as follows;
81. “Education” according to Chambers Dictionary is “bringing up or
training; ? strengthening of the powers of body or mind; culture”.

82. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edn., 2005, Vol. 2)
“education” is defined in very wide terms. It is stated:
“Education is the bringing up; the process of developing and training the
powers and capabilities of human beings. In its broadest sense the word
comprehends not merely the instruction received at school, or college but the
whole course of training moral, intellectual and physical; is not limited to the
ordinary instruction of the child in the pursuits of literature. It also
comprehends a proper attention to the moral and religious sentiments of the
child. And it is sometimes used as synonymous with ‘learning’.”

83. In Sole Trustee, Lok Shikshana Trust v. CIT11 the term “education” was
held to mean (SCC p. 262, para 5)
“the systematic instruction, schooling or training given to the young in
preparation for the work of life. It also connotes the whole course of
scholastic instruction which a person has received. ? What education connotes ?
is the process of training and developing the knowledge, skill, mind and
character of students by formal schooling.”

84. In “India – Vision 2020” published by the Planning Commission of
India, it is stated (at p. 250):
“Education is an important input both for the growth of the society as
well as for the individual. Properly planned educational input can contribute to
increase in the gross national products, cultural richness, build positive
attitude towards technology and increase efficiency and effectiveness of the
governance. Education opens new horizons for an individual, provides new
aspirations and develops new values. It strengthens competencies and develops
commitment. Education generates in an individual a critical outlook on social
and political realities and sharpens the ability to self-examination, self-
monitoring and self-criticism.”
“The term ‘knowledge society’, ‘information society’ and ‘learning
society’ have now become familiar expressions in educational parlance,
communicating emerging global trends with far-reaching implications for growth
and development of any society. These are not to be seen as mere clich,s or fads
but words that are pregnant with unimaginable potentialities. Information
revolution, information technologies and knowledge industries, constitute
important dimensions of an information society and contribute effectively to the
growth of a knowledge society.” (ibid., p. 246)
“Alvin Toffler (1980) has advanced the idea that power at the dawn of
civilisation resided in the ‘muscle’. Power then got associated with money and
in the 20th century it shifted its focus to ‘mind’. Thus the shift from physical
power to wealth power to mind power is an evolution in the shifting foundations
of economy. This shift supports the observation of Francis Bacon who said
‘knowledge itself is power’; stressing the same point and upholding the
supremacy of mind power, in his characteristic expression, Winston Churchill
said, ‘the empires of the future shall be empires of the mind’. Thus, he
corroborated Bacon and professed the emergence of the knowledge society.”
(ibid., p. 247)

85. Quadri, J. has well put it in his opinion in Pai Foundation1: (SCC p.
635, para 287)
“287. Education plays a cardinal role in transforming a society into a
civilised nation. It accelerates the progress of the country in every sphere of
national activity. No section of the citizens can be ignored or left behind
because it would hamper the progress of the country as a whole. It is the duty
of the State to do all it could, to educate every section of citizens who need a
helping hand in marching ahead along with others.”

86…. 87…. Education is a national wealth which must be distributed
equally and widely, as far as possible, in the interest of creating an
egalitarian society, to enable the country to rise high and face global
competition. “Tireless striving stretching its arms towards perfection” (to
borrow the expression from Rabindranath Tagore) would not be successful unless
strengthened by education.
88. Education is:
“? continual growth of personality, steady development of character, and
the qualitative improvement of life. A trained mind has the capacity to draw
spiritual nourishment from every experience, be it defeat or victory, sorrow or
joy. Education is training the mind and not stuffing the brain.”
(See Eternal Values for A Changing Society, Vol. III – Education for Human
Excellence, published by Bharatiya Vidya Bhavan, Bombay, at p. 19.)

“We want that education by which character is formed, strength of mind is
increased, the intellect is expanded, and by which one can stand on one’s own
feet. ? The end of all education, all training, should be man-making. The end
and aim of all training is to make the man grow. The training by which the
current and expression of will are brought under control and become fruitful is
called education.” (Swami Vivekanand as quoted ibid., at p. 20.)
89. Education, accepted as a useful activity, whether for charity or for
profit, is an occupation. Nevertheless, it does not cease to be a service to
society. And even though an occupation, it cannot be equated to a trade or a
business.
90. In short, education is national wealth essential for the nation’s
progress and prosperity.”

13.In an educational institution which imparts education, discipline,
virtues of human life and promotes moral and educational standards, a teacher,
who is convicted of an offence, cannot contend that the disciplinary authority
should retain him in service, and allowed him to work. If such an argument is
accepted, it would have a demoralising effect not only on the students, but also
on others, working in the institution. An educational institution is a temple,
where convicts cannot be allowed to work, that too in teaching post. Yet
another aspect to be noted is that, as per Section 18(2) of the Act, the College
may also define the standards to be observed by teachers and other persons
employed in the private college, such standards not being inconsistent with the
provisions of the Act and the rules made thereunder. Therefore, the instances
mentioned in the Code of Conduct, are not the only acts of misconduct, for which
disciplinary action can be taken.

14.The other contention raised by the learned counsel for the petitioner
that the impugned order is liable to be set aside, for invoking fundamental
rules is also liable to be rejected, for the simple reason that Courts have
consistently held that quoting a wrong provision of law or rule would not
invalidate an order of suspension. The disciplinary authority, the College
Committee is empowered to place the petitioner under suspension and that the
Secretary can carry out its decisions. There is no lack of jurisdiction. Power
of the College Committee to place a teacher under suspension, for criminal acts,
not mentioned in Code of Conduct, is no longer integra, in view of the decision
of this Court in G.Anbarasan vs. District Educational Officer, Cuddalore
District and another reported in 2001(1) CTC 292, wherein this Court at
paragraphs 22 to 27 has held as follows;
“22. The Apex Court has laid down in three cases namely, Hotel Imperial v.
Hotel Workers Union, AIR 1959 SC 1342, R.P. Kapur v. Union of India, AIR 1964 SC
799, and T. Cajee v. U.Jormonic Siem, 1961 (1) SCR 750 : AIR 1961 SC 276 that
it is well settled that under the ordinary law of Master and Servant, the power
to suspend a servant without pay could not be inferred as a term in an ordinary
contract of service between the master and the servant. But that must arise from
an express term in the contract itself or statutory provision enabling such
contract. It has been further held that an order of interim suspension could be
passed against an employee even though there was no specific provision to that
effect in its term of assignment or in the rules. But in such cases the employee
would be entitled to his remuneration for the period of his interim suspension
if there is no statute or rule existing under which it could be withheld. In
R.P. Kapur v. Union of India, AIR 1964 SC 799. It has been held thus:-
“On general principles therefore the authority entitled to appoint a
public servant would be entitled to suspend him pending a departmental enquiry
into his conduct or pending a criminal proceeding, which may eventually result
in a departmental enquiry against him. This general principle is illustrated by
the provision in Section 16 of the General Clauses Act, No X of 1897, which lays
down that where any Central Act of Regulation gives power of appointment that
includes the power to suspend or dismiss unless a different intention appears.
Though this provision does not directly apply in the present case, it is in
consonance with the general law of master and servant. But what amount should be
paid to the public servant during such suspension will depend upon the
provisions of the statute or rule in that connection. If there is such a
provision the payment during suspension will be in accordance therewith. But if
there is no such provision, the public servant will be entitled to his full
emoluments during the period of suspension. This suspension must be
distinguished which is a different matter altogether depending upon the rules in
that behalf. On general principles therefore the Government, like any other
employer would have a right to suspend a public servant in one of two ways. It
may suspend any public servant pending departmental enquiry or pending criminal
proceedings; this may be called interim suspension.”
23. In B.R. Patel v. State of Maharashtra, AIR 1968 SC 800, it has been
held thus:-
“The general law on the subject of suspension has been laid down by this Court
in three cases viz., Management of Hotel Imperial, New Delhi v. Hotel Worker’s
Union, 1960 (1) SCR 476 : AIR 1959 SC 1342; T. Cajee v. U.Jormonic Siem, 1961
(1) SCR 750 : AIR 1961 SC 276 and R.P. Kapur v. Union of India, 1964 (5) SCR 431
: AIR 1964 SC 787. It is now well settled that the power to suspend, in the
sense of a right to forbid a servant to work, is not an implied term in an
ordinary contract between master and servant, and that such a power can only be
the creature either of a statute governing the contract, or of an express term
in the contract itself. Ordinarily, therefore, the absence of such power either
as an express term in the contract or in the rules framed under some statute
would mean that the master would have no power to suspend a workman and even if
he does so in the sense that he forbids the employee to work, he will have to
pay wages during the period of suspension. Where, however, there is power to
suspend either in the contract of employment or in the statute or the rules
framed thereunder, the order of suspension has the effect of temporarily
suspending the relationship of master and servant with the consequence that the
servant is not bound to render service and the master is not bound to pay. This
principle of law of master and servant is well established; (See Hanley V. Pease
and Partners, Ltd., 1915 (1) KB 698 : Wallwork v. Fielding 1922 (2) KB 66 and
the judgment of Cotton L.J in Boston Deep Sea Fishing and Ice Co., v. Ansell,
1988 (39) Ch D 339. It is equally well settled that an order of interim
suspension can be passed against the employee while an inquiry is pending into
his conduct even though there is no such term in the contract of appointment or
in the rules, but in such a case the employee would be entitled to his
remuneration for the period of suspension if there is no statute or rule under
which it could be withheld.
4. The general principle therefore is that an employer can suspend an employee
pending an inquiry into his misconduct and the only question that can arise in
such suspension will relate to payment during the period of such suspension. If
there is no express term relating to payment during such suspension or if there
is no statutory provision in any enactment or rule the employee is entitled to
his full remuneration for the period of his interim suspension. On the other
hand, if there is a term in this respect in the contract of employment or if
there is a provision in the statute or the rules framed thereunder providing for
the scale of payment during suspension the payment will be made in accordance
therewith. This principle applies with equal force in a case where the
Government is an employer and a public servant is an employee with this
qualification that in view of the peculiar structural hierarchy of Government
administration, the employer in the case of employment by Government must be
held to be the authority which has the power to appoint the public servant
concerned. It follows therefore that the authority entitled to appoint the
public servant is entitled to suspend him pending a departmental enquiry into
his conduct or pending a criminal proceeding, which may eventually result in a
departmental enquiry against him. But what amount should be paid to the public
servant during such suspension will depend upon the provisions of the statute or
statutory rule in that connection, if there is such a provision the payment
during suspension will be in accordance therewith. But if there is a no such
provision, the public servant will be entitled to his full emoluments during the
period of suspension. On general principles therefore the Government, like any
other employer would have a right to suspend a public servant in one of two
ways, it may suspend any public servant pending departmental enquiry or pending
criminal proceedings, this may be called interim suspension. The Government may
also proceed to hold a departmental enquiry and after his being found guilty
order suspension as a punishment if the rules so permit. This will be suspension
as a penalty. As we have already pointed out, the question as to what amount
should be paid to the public servant during the period of interim suspension or
suspension as a punishment will depend upon the provisions of the statute or
statutory rules made in that connection.”
24. In Y. Theclamma v. Union of India, AIR 1987 SC 1210, Their Lordships
of the Supreme Court had occasion to consider the suspension of a teacher
working in an minority institution and it has been held thus:-
“10. However, there was a difference of opinion as to the applicability of
Ss.3(3)(a), 3(3)(b), 6 and 7. We need only notice Ss.3(3)(a) and 3(3)(b) which
pertained to the power of suspension. S.3(3)(a) provided that no teacher
employed in any private educational institution shall be placed under suspension
except when an inquiry into the gross misconduct of such teacher is
contemplated. S.3(3)(b) provided that no such suspension shall remain in force
for more than a period of two months and if the enquiry was not contemplated
within that period, the teacher shall be deemed to be reinstated. Proviso
thereto however conferred power on the competent authority, for reasons to be
recorded in writing, to extend the period for a further period not exceeding two
months. Chandrachud C.J., found it difficult to agree with Fazal Ali, J. that
these provisions were violative of Art. 30(1) thereby agreeing with Kailasam,
J., that they were indeed regulatory. S.3(3)(a), in his own words, contained,
but an elementary guarantee of freedom from arbitrariness to the teachers. The
provision was regulatory in character since it neither denied to the management
the right to proceed against an erring teacher nor indeed did it place an
unreasonable restraint on its power to do so. It assumed the right of the
management to suspend a teacher but regulated that right by directing that a
teacher should not be suspended for more than a period of two months unless the
inquiry was in respect of a charge of gross misconduct. In dealing with
S.3(3)(a), the learned Chief Justice observed (at p.1051 of AIR 1980 SC):
“Fortunately, suspension of teachers is not the order of the day, for which
reason I do not think that these restraints which bear a reasonable nexus with
the attainment of educational excellence can be considered to be violative of
the right given by Art. 30(1).”
He then stated:
“The limitation of the period of suspension initially to two months, which can
in appropriate cases be extended by another two months, partakes of the same
character as the provision contained in S.3(3)(a). In the generality of cases, a
domestic inquiry against a teacher ought to be completed within a period of two
months or say within another two months. A provision founded so patently on
plain reason is difficult to construe as an invasion of the right to administer
an institution, unless that right carried with it the right to maladminister.”
He accordingly agreed with Kailasam, J., that Ss.3(3)(a) and 3(3)(b) which put
restraints on the arbitrary power of suspension of teachers were regulatory in
character and did not offend against the fundamental right of minorities under
Art. 30(1).”
“12. It cannot be doubted that although disciplinary control over the teachers
of a minority educational institution is with the management, regulations can be
made for ensuring proper conditions of service for the teachers and also for
ensuring a fair procedure in the matter of disciplinary action. As the Court
laid down in Frank Anthony Public School’s case, the provision contained in
Sub.S(4) of Section 8 of the Act is designed to afford some measure of
protection to the teachers of such institutions without interfering with the
management’s right to take disciplinary action. Although the Court in that case
had no occasion to deal with the different ramifications arising out of Sub-
Section(4) of Section 8 of the Act, it struck a note of caution that in a case
where the management charged the employee with gross misconduct, the Director is
bound to accord his approval to the suspension. It would be seen that the
endeavour of the Court in all the cases has been to strike a balance between the
constitutional obligation to protect what is secured to the minorities under
Art. 30(1) with the social necessity to protect the members of the staff against
arbitrariness and victimization.”
25. In V.P. Gindroniya v. State of M.P., AIR 1970 SC 1494, a larger Bench
of the Supreme Court laid down that the power to suspend is not an implied term
in an ordinary contract, but such a power can only be the creature either of a
statutory governing the contract or of an express term in the contract itself.
In that context it has been held thus:-
“8. The same view was reiterated by this Court in T. Cajee v. U. Jomanic Siem,
1961 (1) SCR 750 : AIR 1961 SC 276. The rule laid down in the above decisions
was followed by this Court in R.P. Kapur v. Union of India, 1964 (5) SCR 431 :
AIR 1964 SC 787. The law on the subject was exhaustively reviewed in Balvantray
Ratilal Patel v. State of Maharashtra, 1968 (2) SCR 577 : AIR 1968 SC 800.
Therein the legal position was stated thus: The general principle is that an
employer can suspend an employee of his pending an enquiry into his misconduct
and the only question that can arise in such a suspension will relate to the
payment of his wages during the period of such suspension. It is now well
settled that the power to suspend, in the sense of a right to forbid a employee
to work, is not an implied term in an ordinary contract between master and
servant, and that such a power can only be creature either of a statute
governing the contract, or of an express term in the contract itself.
Ordinarily, therefore, the absence of such a power either as an express term in
the contract or in the rules framed under some statute would mean that an
employer would have no power to suspend an employee of his and even if he does
so in the sense that he forbids the employee to work, he will have to pay the
employee’s wages during the period of suspension. Where, however, there is power
to suspend either in the contract of employment or in the statute or the rules
framed thereunder, the order of suspension has the effect of temporarily
suspending the relationship of master and servant with the consequence that the
servant is not bound to render service and the master is not bound to pay. It is
equally well settled that an order of interim suspension can be passed against
the employee while an enquiry is pending into his conduct even though there is
no such term in the contract of employment or in the rules, but in such a case
the employee would be entitled to his remuneration for the period of suspension
if there is no statute or rule under which, it could be withheld. The
distinction between suspending the contract of a service of a servant and
suspending him from performing the duties of his office on the basis that the
contract if subsisting is important. The suspension in the latter case is always
an implied term in every contract of service. When an employee is suspended in
this sense, it means that the employer merely issues a direction to him that he
should not do the service required of him during a particular period. In other
words the employer is regarded as issuing an order to the employee which because
the contract is subsisting, the employee must obey.”
26. In Hotel Imperial v. Hotel Workers Union, 1959 SC 1342, it has been
held thus:-
“10. The first question therefore that fails for consideration is the extent of
the power of the employer to suspend an employee under the ordinary law of
master and servant. It is now well settled that the power to suspend, in the
sense of a right to forbid a servant to work, is not an implied term in an
ordinary contract between master and servant, and that such a power can only be
the creature either of a statute governing the contract, or of an express term
in the contract itself. Ordinarily, therefore, the absence of such power either
as an express term in the contract or in the rules framed under some statute
would mean that the master would have no power to suspend a workman and even if
he do so in the sense that he forbid the employee to work, he will have to pay
wages during the so called period of suspension. Where, however, there is power
to suspend either in the contract of employment or in the statute or the rules
framed thereunder, the suspension has the effect of temporarily suspending the
relation of master and servant with the consequence that the servant is not
bound to render service and the master is not bound to pay. These principles of
the ordinary law of master and servant are well settled and have not been
disputed before us by either party. Reference in this connection may be made to
Hanky v. Peas and Partners Ltd,, 1915 (1) KB 698, Wallwork v. Fielding, 1922 (2)
KB 66, Secretary of State v. Surendra Nath, ILR 1939 (1) Cal. 46 : AIR 1938 Cal.
759 and Rura Ram v. Divisional Superintendent, N.W.Railway, ILR 1954 (7) Pun.
415 : AIR 1954 Pun. 288. ”
27. Though the statutory provisions of the Tamil Nadu Recognised Private
Schools (Regulation) Act and the Rules framed thereunder do not make a provision
for placing a teacher or other person employed in a school under suspension
pending investigation or the crime or a complaint or pending a criminal case,
the employer of such a teacher could very well place him under suspension even
when the statutory provision do not provide for such a contingency, by exercise
of its powers of suspension, but the employer has to pay the salary.”

At paragraph 28, taking note of the conspicuous absence of a provision in
the Tamil Nadu Recognized Private Schools Regulation Act and the rules framed
thereunder, this Court has observed that the legislature should take steps to
introduce a provision. Though the abovesaid judgment has been delivered in the
year 2000 and a decade has gone, no provision has been introduced so far.

15.In M.S.Mariappa Nadar vs. The State of Madras represented by the
Commercial Tax Officer, North, Madras, reported in 73 Law Weekly 183, a
Division Bench of this Court held that it should be taken as well settled that
even a wrong reference to a statutory provision, may not invalidate an order
passed by an authority, if that authority had the requisite power to pass that
order, that is the jurisdiction in the exercise of which, he could pass such an
order.

16. It is also useful to refer a decision of the Supreme Court in D.G.
and I.G. of Police vs. K.Ratnagiri, reported in (1990) 3 SCC 60, wherein the
Supreme Court, while construing Rule 13(1) operating in Andra Pradesh, in
relation to a Government Servant of Andhra Pradesh, held that a wrong
terminology in the order did not take away the power if it is available
otherwise, and has further held as follows:

“7…..The Rule 13(1) empowers the authority to keep the respondent under
suspension pending investigation or enquiry into the criminal charges where such
suspension is necessary in the public interest. When the first information
report is issued, the investigation commences and indeed it has commenced when
the respondent was kept under suspension. The order of suspension cannot,
therefore, be said to be beyond the scope of Rule 13(1) merely because it has
used the word ‘prosecution’ instead of investigation into the charges against
the respondent. A wrong wording in the order does not take away the power if it
is otherwise available. The Tribunal seems to have ignored this well accepted
principle.” (Emphasis added)

17.In State of Karnataka vs. Krishnaji Srinivasa Kulkarni and others
reported in 1994(2) SCC 558, the Supreme Court held that quoting of wrong
provision does not take away the jurisdiction of authorities/Court, under the
Act.

18.For the reasons stated supra, this Court is of the view that there is
no manifest illegality in suspending the petitioner from service. There are no
merits in the writ petition. Hence, the writ petition is dismissed. It is open
to the College Committee to take appropriate action, in view of the conviction
recorded against the petitioner, in various criminal cases. Consequently,
connected miscellaneous petition is also dismissed. No costs.

gcg

To

1.Secretary,
Arignar Anna College,
Aralvoymoli – 629 301,
Kanyakumari District.

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